Several recent media reports indicate that the Obama administration is stepping up enforcement of the Freedom of Access to Clinic Entrances (FACE) Act, which imposes strict limitations on peaceful protests at abortion clinics. The FACE Act was sponsored by Ted Kennedy and signed into law by President Clinton in 1994. Regrettably, it passed with bipartisan support — a spate of violence at abortion clinics in the early 1990s might have persuaded some Republicans to support this bill. Other Republicans might have agreed to vote for the law because it also places restrictions on protests near churches and houses of worship.

Most lawyers recognize that this law has constitutional problems. Tom McClusky of the Family Research Council states that there has always been a gentleman’s agreement not to fully enforce the law. The Justice Department filed only one case under the FACE Act during the George W. Bush administration. Since President Obama was inaugurated, however, the DOJ has already filed eight such cases. The case filed against Dick Retta, who consistently gives sidewalk counseling in front of the 16th Street abortion clinic in Washington, D.C., has received plenty of attention from pro-life media outlets. However, there are a number of other pro-lifers being prosecuted for little more than handing out literature outside of abortion clinics.

When government is divided, the president typically uses the power of the executive branch to incrementally shift abortion policy in ways that will please his most committed supporters. President Obama could not deliver the Freedom of Choice Act (FOCA) to supporters of legal abortion, but within days of his inauguration he overturned the Mexico City Policy, allowing foreign-aid funds to go to organizations that perform abortions. More recently, the HHS contraceptive mandate will potentially result in millions of federal dollars going to Planned Parenthood. As such, it should come as no surprise that the Obama administration is using the Justice Department in such a partisan manner.

— Michael J. New is an assistant professor of political science at the University of Michigan–Dearborn and a fellow at the Witherspoon Institute.